I cannot believe what I saw and heard!

I have written about John Stuart and his upcoming murder trial a few times in the past (see links).  There has not been much activity for a while.  But a few days ago, John Stuart had his Rule 11 (see Criminal Procedure > Rights of Parties) hearing.  Generally, this is a routine hearing to determine if the defendant is sane enough to understand the charges against them and sane enough to assist in their defense.  Pretty strait forward stuff.  (ARS 13-4503) (13-4501, see #2)  (13-4509) (13-4510)

Note you can be crazy as heck, but as long as you understand the charges against you and can assist in your own defense you then go to trial without delay.

Note something else: There is no authority for holding a second Rule 11 hearing if the defendant is ruled competent, and the initial Rule 11 hearing a ruling of incompetence must be based upon the two appointed psychiatric evaluation reports and any additional evidence introduced at the hearing.  Additional evidence can delay the Rule 11 hearing.  But otherwise the "judge" (Commissioner in this case) is expected to rule the defendant competent and by law "set a trial without delay."

I have talked with John Stuart on many occasions.  I may not agree with him on his opinions at times.  Or his actions at times.  Or his statements at times.  But I have never thought even in the slightest that he did not understand the charges he faces or was incapable of defending himself in court.

So I figured as irritating as he was to the judge currently assigned to his trial, I never figured this Rule 11 hearing (2) was anything other than a matter of routine.  Boy was I wrong.

Mr. Stuart had been interviewed by a separate psychiatrist and psychologist respectively -- Dr. Joel Parker and Dr. Scott Sindelar (additional link) -- assigned by the court to make this determination.  They are by law required to file their expert reports.

I sat in the hearing room in front of Commissioner Steven Holding hearing two Rule 11 cases before Stuart's case came before him.  It went something like this: 'I have read the reports of the two psychiatrists assigned to evaluate you, and find you competent to stand trial.  I am assigning you trial case conference date of ....'  Boom gavel down, next case.

Then John Stuart's turn came.  John has some special circumstances.  1.  He is not held in custody.  2.  He is demanding his Right to defend himself (i.e., pro se, aka pro per) having rejected his court assigned defense counsel.  The court has refused to release his defense counsel and indeed has announced they will not accept any further motions from Mr. Stuart since he is represented (against his will) by counsel, and deleated all prior motions filed by Mr. Stuart from its records. 

The hearing started out with Mr. Stuart refusing to pass the bar -- the wall in the courtroom separating the gallery from the court -- to stand by his imposed defense attorney, Mr. John Johnson, as directed by the Commissioner.  Three of Sheriff Joe's finest were eagerly awaiting orders to pounce when Stuart agreed upon final warning to stand by the defense attorney "under duress" and that he would be under duress throughout the hearing.  The Commissioner acknowledged this.  The three huge deputies surrounded Stuart, unbidden by the Commissioner after Mr. Stuart stood next to the defense attorney.  So I guess he really was under duress.

The Commissioner noted he was in possession and had read the two expert's reports and they had found Mr. Stuart competent to stand trial.  One of the experts, however, noted Mr. Stuart may suffer from a disorder that renders in him a compulsion to filing forms with the court -- a kind of dementia that compels him to defend himself I suppose.  How awful.  I am sure sedation and electroshock therapy could cure him eventually.  But yet, this compulsion did not arise to the standard that the expert felt left him either incapable of defending himself or understanding the charges against himself.

No new evidence was submitted by either side.  Yet the Commissioner in complete agreement with the Defense attorney and the Prosecutor figured they needed a third expert to evaluate this "disorder." 

So the Commissioner ordered it so and according to the docket (case CR-2008106594) set the dates of December 3 and December 14 for the continuing Rule 11 hearing.  Now having been found competent by two experts there is no basis in law or Rule 11 for the Commissioner to hold a further hearing or hire a third expert.  The law is quite clear that the defendant is to be quickly sent on for trial.  This will amount to around a 90 day delay when all is said and done.  Assuming he is found competent at these upcoming hearings.

So what can it mean when the court, the prosecution and the defense agree to further study the defendant's competency when he has already been deemed competent by the court's own experts?  Nothing but mischief of the state.  Further it strongly suggests the defense attorney is not defending his client's Right to defend himself but is acting as a proxy for the state.  The Commissioner is clearly exceeding his lawful authority in delaying the trial further.
John Stuart had nearly a dozen supporters present who gathered outside in the hallway to ask him for his thoughts.  We were chased away by the prosecutor who told us she had called the deputies to come up and escort the "victims" out of the building and we could have no interaction with them so we were ordered by her to leave. 

Attorney Michael Kielsky was present in the hallway and at some point while we were being chased away he was accused by the prosecutor of having spoken with the "victims."  He denied this, and took some umbrage over being accused of tampering somehow with the hearing.  Kielsky went before the Commissioner to lodge a complaint whom agreed with the prosecutor that Kielsky had no business in front of the 'court.'  [I seeeeee nothing!  I hear nothing!]
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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.  -- Sixth Amendment to the U.S. Constitution

While it could be argued that the courts can compel Counsel because the Sixth Amendment does not preclude it, the Arizona Constitution is quite clear:
 
24. Rights of accused in criminal prosecutions

Section 24. In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed, and the right to appeal in all cases; and in no instance shall any accused person before final judgment be compelled to advance money or fees to secure the rights herein guaranteed.  -- Arizona Constitution Article 2

Mr. Stuart has the Right to defend himself in a criminal prosecution.  The U.S. Supreme Court has equally been clear on this:

The Supreme Court noted that "[i]n the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment was proposed, provided that 'in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.'" Faretta v. California, 422 U.S. 806, 813 (1975) [credit: wiki]

The Supreme Court began to expand the interpretation of the clause in Powell v. Alabama, 287 U.S. 45 (1932), in which it held, “in a capital case [sic--which this is not], where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.”

The Supreme Court expanded the right to pro se representation, holding in Faretta v. California, 422 U.S. 806 (1975), the power to choose or waive counsel lies with the accused, and the state cannot intrude, though it later held in Godinez v. Moran, 509 U.S. 389 (1993), that the state could deny the waiver if it believed the accused less than fully competent to adequately proceed without counsel. In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court held that the constitutional right of "meaningful access to the courts" can be satisfied by counsel or access to legal materials. Bounds has been interpreted, by several federal courts of appeals, to mean a pro se defendant does not have a constitutional right to access a prison law library to research his defense.

In Faretta the court further brought analogies to the Star Chamber, saying "the Star Chamber has, for centuries, symbolized disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. [Counsel that frequently worked for the Star Chamber.]

In Martinez v. California Court of Appeals, 528 U.S. 152 (2000), the Supreme Court ruled the right to pro se representation did not apply to appellate courts.


Frendak v. United States 408 A.2d 364 (D.C. 1979) is a landmark case in which United States Court of Appeals for the District of Columbia Circuit decided that a judge could not impose an insanity defense over the defendant's objections.  Paula Frendak shot a coworker. After four competency hearings, the defendant was adjudicated competent, although in the opinion of several experts she was likely insane when she committed the crime. However, Frendak refused to use the insanity defense as she felt a hospital was worse than any prison. She was forced by the court to plead insanity. Thus, in this case a competent defendant was not allowed to reject the use of the insanity defense. [credit: wiki]  On appeal the decision was reversed. The judge may not impose the insanity defense upon an unwilling defendant if an intelligent defendant voluntarily wishes to forgo the defense.  "...respect for a defendant's freedom as a person mandates that he or she be permitted to make fundamental decisions about the course of the proceedings."

Godinez v. Moran, 509 U.S. 389 (1993), was a landmark decision in which the U.S. Supreme Court ruled that if a defendant was competent to stand trial, they were automatically competent to plead guilty or waive the right to legal counsel and represent themselves pro se.


McKaskle v. Wiggins, 465 U.S. 168 (1984), is a United States Supreme Court case in which the court considered the role of standby counsel in a criminal trial where the defendant conducted his own defense (pro se). In this case the defendant claimed his Sixth Amendment right to present his own case in a criminal trial was violated by the presence of a court-appointed standby counsel.  The court agreed.


Drope v. Missouri (1975) – the U.S. Supreme Court ruled that a “bona fide doubt” must exist in order for the judge, prosecutor, or defense counsel to obtain an evaluation of the defendant’s competency to stand trial.  The court also made it clear that the threshold for obtaining a competency to stand trial determination was low, and that factors that might be indicative of mental illness should be considered.